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4. The main issue before the trial Court was whether the 'Plaintiff was entitled to Partition of the suit properties. There was also an issue whether the first defendant, that is, the father of the plaintiff, was the exclusive owner of in Survey Number referred to in paragraph 7 01 the written statement.

5. The trial Court was of the view that there was no partition between the first defendant and his father and that the plaintiff was therefore entitled to 1/6th share in the joint family properties and an 1hat basis it passed the preliminary decree. That preliminary decree was assailed in the Court of the District Judge by the plaintiff's father. 7be appellate Court held that the evidence on record did not justify an inference that the first defendant had 'separated himself from his father about for" years prior to the suit as alleged by the plaintiff. In that view, following the decision of the Full Bench of the Bombay High Court in Apaji Narhar v. Ramchw2dra Ravji (1892) ILR 16 Bom 29 (FB) the lower appellant court allowed the appeal. The, plaintiff preferred a Second Appeal against the said judgment and decree and the learned Single Judge agreed with the findings recorded by the first appellate Court and dismissed the appeal and consequently the suit. He, however, granted leave and that is, how the Letters Patent Appeal is before us.

6. Mr. Vyas, learned counsel appearing for the appellant, strenuously contended that the decision of the Bombay High Court in Apajis case (1892) ILE 16 Bom. 29 (FB) is no longer Rood law in view of the decision of the Supreme Court in State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330 and, therefore, the plaintiff Is entitled to a preliminary decree in his favour for partition of the properties by metes and bounds. The question raised in Apaji's case was whether under the Hindu Law applicable to the Presidency of Bombay (the Satara District), a son can in the lifetime of his father sue his father and uncles for a partition of the ancestral family properties and for possession of his share therein, the father not assenting thereto. Justice Telang delivered a dissenting judgment whereas the other learned Judges Sir Charles Sargent, Kt., Chief Justice. Mr. Justice Bayley and Mr Justice Candy held that under the Hindu law applicable to the Presidency of Bombay which then comprised of this State also, a son cannot in the lifetime of his father sue his father and uncles for a partition of the ancestral immovable family property and for possession of his share without the father assenting thereto Mr. Vyas invited our attention to certain passages in the judgment of Justice Telang to contend that the view of Justice Telang is the view taken by all other High Courts in India and, therefore, the view of the majority in Apaji's case requires reconsideration. In the then Bombay State which comprised the present State of Gujarat, the law as laid down in Apaji's case is that without the assent of his father a son is not entitled to a partition if the father is joint with his own father, brothers, or other coparceners, though h6 may enforce a partition against the father if the father is separate from them.

11. Apajis case (1892) ILR 16 Bom. 29 (FB) came to be considered by a Division Bench of this Court in Jaswantlal v. Nichhabhai, (1964) 5 Gu] LR 161 : (AIR 1964 Gui 283). That was a case where the plaintiff asked for partition of the joint family properties by metes and bounds on the ground that there was severance of status. The learned Judges, therefore, distinguished Apaji's case and held that where there was severance of status it would be open to a son where the coparcenery consists of his father, uncles and others, to ask for partition of the properties by metes and bounds without the father assenting thereto. The Supreme Court in Civil Appeal No. 403 of 1964 decided on August 23, 1965 affirmed that decision. In so affirming, the learned Judges observed-

"Having, therefore, regard to the statement of the plaintiff in all the paragraphs of the plaint and interpreting the plaint as a whole we are satisfied that the High Court was right in holding that the suit was not a suit brought for severance of joint family status but was a suit merely Supreme Court arises In this ewe. for partition by metes and bounds."

12. Now in the present case what the plaintiff is asking is not only for severance of status but also for partition of the properties by metes and bounds In the above appeal the correctness of the decision of the Full Bench In Apaji's owe (1892) ILR 16 Bom. 29 (FB) was not challenged- The Supreme Court, however, made it clear that they "were not expressing any opinion with regard to the correctness of that decision or its applicability to this case". Therefore, it Is not necessary for the purpose of disposal of this Letters Patent Appeal that this Court should refer the matter to a larger bench to examine the correctness of the decision in Apaji's case. The Supreme Court has affirmed the view of this Court in Jaswantlal v. Nichhabhai (AIR 1964 Gui 283) (supra) that where there is severance of status it would be open to a son to ask for partition of the joint family properties by metes and bounds. In this case, as already pointed out by us, a categorical find- R. 2; 00 Sp ing of fact has been recorded that there was no severance of status as claimed by the father of the plain tiff. In fact it is the case of the plaintiff that there was no severance of status, The case of the plaintiff must either stand or fail on his own. He cannot now be permitted in this Court to approbate and reprobate by asking us to take into account what his father had said in his written statement. So far as that question whether his father had separated from his grandfather about forty years ago was concerned, there is a categorical finding of fact and that puts an end to the controversy as to whether there was severance of status or not.